Cabaret Law Nears Repeal

By
Leonard Jacobs
| Posted Dec. 5, 2003, midnight

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Department of Consumer Affairs Commissioner Gretchen Dykstra has issued a proposal to abolish New York City's controversial cabaret law, replacing it with a nightlife license that would address concerns about noise levels, crowd control, and dirty sidewalks outside late-night venues.

Created in 1926, New York's cabaret law was designed to regulate public establishments where music and/or dancing occurred. Through the years, various lawsuits struck down elements of the law, including a 1988 case that found much of it unconstitutional. In the last year, Dykstra has met with government representatives, city council members, venue owners, and activist groups such as Legalize Dancing NYC to examine how to make the law relevant to the times. At a June public hearing, Dykstra stated, "We don't think the city's existing cabaret laws adequately address the problems affecting communities and nightlife establishments."

Under the proposal, venues meeting three criteria would need a nightlife license, good for two years: (1) Establishments in residential and certain mixed-use zones with capacities over 75 people (or 200 people in commercial/manufacturing zones); (2) establishments that "have continuous live or reproduced sound at a noise level of 90 decibels or higher"; and (3) establishments open after 1 am. Another rule would mandate a certified security guard for every 50 people in venues that hold 500 or more.

In a statement, Dykstra said that while "New York City has the most exciting nightlife in the world," the cabaret law was no longer effective in governing it. This proposal, however, "promotes a lively nightlife without requiring a license to dance, and most importantly, it will improve the quality-of-life in neighborhoods and strengthen enforcement to effectively deal with poorly managed places."

Cabaret Clash

As reported in Back Stage last June, at least one industry figure also believes the term "cabaret" should be redefined as part of any new nightlife code.

According to the present law, a "cabaret" is: "any room, place, or space in the city in which any musical entertainment, singing, dancing, or other form of amusement is permitted in connection with the restaurant business or the business of directly or indirectly selling to the public food or drink." Such a broad definition, said Don't Tell Mama Booking Manager Sidney Myer, creates a misnomer that distorts the artistry practiced in his venue.

"The heart of the problem with the law goes back to the rule in which you could only have three instruments on the stage," he said. Also, "what the city calls a 'cabaret' is not what the popular connotation for a 'cabaret' has been and continues to be today. Pick up any periodical, any newspaper, and it'll say 'cabaret' without connoting a place that has dancing. Today, [the city is] still using an archaic definition for 'cabaret' for what we would consider a dance club or a disco." It's a misnomer because clubs like Don't Tell Mama are more about song interpretation than slam dancing in mosh pits.

"So many times when people ask, 'Do you have a cabaret license?,' the implication is you have to have a cabaret license to sing beside a piano. At various points over the years, we've also been asked to refer to our space as a theatre -- even though you can pick up The New York Times and see the popular reference to us as 'cabaret.' It always strikes me as peculiar that in articles on the 'cabaret laws,' there's never a footnote for the reader to see that what the code refers to is not a cabaret in the sense we know it today. It's as if rooms like ours simply don't exist."

Myer, however, expressed gratitude for Chiasson v. New York City Department of Consumer Affairs, the case that invalidated the part of the cabaret code governing establishments like Don't Tell Mama.

Paul G. Chevigny, a New York University law professor who won the case, told Back Stage that the real issue at the June public hearing was dancing, not interpreting Sondheim. He credited activist groups like Legalize Dancing NYC with leading the charge -- now nearly complete -- to capsize the current code.

The way the law was written, Chevigny explains, "required you to have a cabaret license to have music and/or dancing in any place. As the years passed, a zoning provision was added that made large areas of the city places where you couldn't have entertainment at all. That remained in place until the '50s, when an exception was added to the ordinance that said you could have up to three musicians without a license, provided there were no horns or percussion. It was anti-jazz, sheer racism?and it was an outrage."

Over time, Chevigny says, anger built among musicians. "By the '60s, if not earlier, you could make as much noise with three instruments as you could with a 100-piece orchestra -- the ordinance was so old-fashioned that it didn't deal with amplification or canned music. So the law couldn't even be rationalized as a noise measure, because you could make as much noise as you wanted to."

Chevigny recalls "hanging out at a little place on Amsterdam Avenue called the Burgundy Cafe" where trios -- ostensibly lacking horns or percussion -- ruled the day. Learning of the cabaret laws, he contacted Local 802, the musicians union, which said it was trying to amend the law through the city council. "I urged the union to sue," he says. "They had nothing to lose."

After a five-year legal struggle, David Saxe, the ironically named judge, "struck the cabaret laws down as a whole, including the zoning provisions, as applied to live music. Now, you can have live music and as many musicians as you want, subject to noise control. Judge Saxe held the cabaret laws were unconstitutional because there are cases from the Supreme Court that say the popular arts, of which jazz is one, are protected by the First Amendment." Social dancing, he notes, has not been afforded similar protections.

After Judge Saxe's ruling came a redrafting of the cabaret laws to accommodate places with fewer than 200 persons. That covers most "cabarets" -- leaving most dance clubs to shake their fists (and hips) at a distinctly unpopular law.